The Direction of Travel for Sentencing Reform – Might less prison lead to a better deal for the taxpayer?

The purpose of our sentencing regime was fairly easy to discern back in Medieval times – when stocks, ducking stools and beheadings were the order of the day. The objectives were a mixture of punishment, retribution and deterrence.  This state of affairs lasted for centuries (albeit with a reduced reliance on stocks and ducking stools) and didn’t change a great deal until the twentieth century, when the purpose of rehabilitation started to come into play.  Through the latter part of the last century and into the first quarter of this, successive governments have batted around sentencing reforms with the seemingly competing interests of punishment and rehabilitation. The former plays well with most people’s base instincts and is therefore a sure-fire vote winner.  The latter claims to be more evidence driven and has at its heart the objective of reducing re-offending rates.  But, rehabilitation as a goal is also considered to be soft, a bit lefty-liberal, well-meaning but fundamentally missing the point.

“Prison is an expensive way of making bad people worse” claimed the Tory government in 1990 before they swiftly dumped a rehabilitative agenda in order to shore up their vote.  As such, when Tony Blair coined his famous “tough on crime, tough on the causes of crime” slogan in the mid-90’s – he may well have intended to put rehabilitation at the heart of his criminal justice agenda but, once in power, what he actually did was to double down on punishment and play to the electorate’s instinct for “just deserts”.  Since the late 1990’s, political parties have competed with each other to be the most “tough on crime” and this has led to more and more offenders being sent to prison – for longer – which, in turn, has led to more and more offenders returning to prison.  “Tough on the causes of crime” was largely jettisoned as a goal.

The result of this 30 year battle to up the punishment rhetoric is an ever-growing prison population and a system which has been at bursting point in recent years.  The increasing numbers of people being sent to prison is not a result of an increase in crime.  Far from it, most forms of criminal activity have generally reduced over the last 30 years.  The growing prison numbers are actually related to our governments’ repeated efforts to increase maximum sentences, the introduction of minimum sentences for certain repeat offences, an increased use of indeterminate sentences and extended sentences and a Probation Service who are inclined, through fear of media criticism, to recall offenders for minor infractions of their licence conditions.

But, all of that might be about to change.  The Labour Government that came to power in 2024 faced a crisis in the prison system which left them with little choice but to enact emergency legislation, releasing thousands of prisoners early, to avoid a complete collapse.  This measure was the equivalent of jamming a thumb in the hole in order to prevent the proverbial flood.  It was temporary at best.  Something more significant was going to be required to prevent an annual repeat. But, how to tell the British public that our prison system isn’t working and that we need to reverse the 30-year trend in favour of a more rehabilitative approach – without upsetting the media?  This is the context in which a former Tory Justice Minister was appointed by this Labour Government to oversee a review of the sentencing regime.

The Rt Hon David Gauke, was appointed Chair of an Independent Sentencing Review which published its report last week (May 2025).

“Commissioned by the Ministry of Justice in October 2024, this Independent Sentencing Review (“the Review”) was given the task of a comprehensive re-evaluation of our sentencing framework, to ensure the country is never again in a position where it has more prisoners than prison places, and the government is forced to rely on the emergency release of prisoners”.

With that as its driving focus, the Sentencing Review was given the following broad terms of reference:

• First, sentences must punish offenders and protect the public – there must always be space in prison for the most dangerous offenders.
• Second, sentences must encourage offenders to turn their backs on a life of crime, cutting crime by reducing reoffending.
• Third, we must expand and make greater use of punishment outside of prison.

In these three statements, we can see the beginnings of a pathway, starting with the tub-thumping primary objective of punishment but leading, tentatively perhaps, through the evidence-based objective of rehabilitation to a theoretical new system which doesn’t regard prison as the be all and end all.

The Review sets out its argument for change, using the following logic:

1. There is a need to reduce our prison population – because it is at or reaching capacity. Projections suggest we will run out of space in the near future.  A minimum reduction of 9,500 prisoners is required, in order to ensure that we have sufficient space for the most dangerous offenders.
2. In order to achieve this reduction, more offenders need to be sentenced in the community and the people being sent to prison need to be sent there for less time.
3. Community sentences need to be robust and properly funded.
4. More needs to be done to reduce reoffending.
5. An effective Probation Service is essential.
6. Investment is required in the following areas – housing for offenders, healthcare for addiction and technology for monitoring in the community.
7. This will lead to better value for the taxpayer than ploughing resources into a failing prison system.

The evidence suggests that rehabilitative sentences, based in the community, can better tackle the causes of offending, such as homelessness, unemployment, addiction and mental ill-health.  The Review suggests that the courts should be able to tailor sentences to suit the offender – building bespoke sentences, which will provide the basis for the offender to turn their life around.  Non-custodial sentences, it argues, impact less negatively on housing, employment and family responsibilities.  They can take place over a longer period and involve restrictions on liberty which will, in turn, constrain offending behaviour.  All of which is designed to tackle the inevitable knee-jerk reaction that community based sentences are the “soft option”.

The nuts and bolts of the proposals (lost somewhat in the media’s fascination last week with the suggestion that mandatory chemical castration might be introduced for serious sexual offenders), can be summarised as follows:

• Legislate to ensure that short custodial sentences are only used in exceptional circumstances
• Extend the use of Suspended Sentence Orders to include custodial sentences up to 3 years (the maximum is currently 2 years)
• Extend deferred sentencing up to 12 months and encourage greater use of deferred sentencing for low-risk offenders
• Lengthen Serious Crime Prevention Orders so they take effect for the entire prison sentence and 5 years thereafter
• Strengthen Confiscation Orders
• Introduce a new “Earned progression” system to allow prisoners a swifter pathway from prison to community
• Introduce a new model for recall to prison
• Make greater use of Open Conditions in the prison estate
• Improve investment and access to accommodation in the community for offenders leaving prison and those serving sentences in community
• Launch a public awareness campaign on sentencing to improve transparency generally
• Expand the provision of specialist domestic abuse courts

A system that sets out to reduce crime?

The Sentencing Review signals a move away from the accepted wisdom that the main purpose of sentencing is punishment and that prison is the most effective form of punishment.  As such, this might be the first real move away from the “Tough on Crime” narrative in 30 years.  This is potentially groundbreaking stuff.  But the Government has to be careful to ward off allegations of “wokery” and “snowflakism” if it is to push these proposals through. The Review declines to completely ditch recent accepted wisdom by stating that “punishment is an important aim of the Criminal Justice System and prison plays a vital role” before countering that “the high levels of reoffending demonstrate that this approach is failing”. The average cost of holding a prisoner for the year was estimated to be £53,801 per prisoner in 2023/24.  Building new prisons will cost the taxpayer billions. Maybe its time to calm down the rhetoric and design a sentencing system that is more cost effective and better suited to reducing crime.  This Review marks the first real step in that direction – and, if that fails – maybe we should build some new stocks and re-install the ducking stools.

How can we help?

At Old Bailey Solicitors, we have particular experience representing people who are usually law abiding citizens and have had no previous experience of the criminal justice system. If you have been charged with a criminal offence, you may well find yourself in a completely new and alien situation. We understand that the criminal justice system is scary and complex and we can help to guide you through it.

If you have been accused of criminal activity and if the police have asked you to attend an interview, or if you have already been interviewed and you are waiting to find out whether further action will be taken, contact Old Bailey Solicitors on 0207 8464 999 or email [email protected] to arrange a meeting.